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Have You Ever Had A Case That Made Your Blood Boil?
I have!
Just last week, in fact!
What would you make of this scenario:
Your client and his family, from South America, are the holders of expiring Subclass 457 visas.
The day before the visas were due to expire, they lodged applications for Subclass 186 visas through ImmiAccount, and pay the visa application charges (nearly $10,000 in total) through BPAY.
There is no issue about whether they had adequate funds in their account to cover the BPAY funds transfer: the Department accepts that the payment went through, and was not dishonoured or refused.
All good, you would think, they should have immediately gotten auto-generated Bridging Visa As.
Right?
Nope, not as far as the Department was concerned!
A Department officer writes a letter stating that the visa applications were invalid, and therefore would not be considered, in reliance on Regulation 2.12JA(3) (ever heard of this regulation???).
Regulation 2.12JA (3) essentially provides that when visa application charges are paid by means of funds transfer (through a system such as BPAY), payment for the charges is taken not to have been received until the payment is “electronically matched” with the Internet visa application.
So, relying on this regulation, the Department officer determines that the visa application was not made until the date that the funds transfer was matched to the visa application.
And the date when the application and the funds transfer are matched happens to be a date after the 457 visas expired.
The officer then concludes that because the applicants no longer held substantive visas when the applications were considered to have been made, they cannot satisfy Schedule 1 requirements for the grant of the Subclass 186 visas.
Is that sufficiently insane for you?
It gets even worse, much worse!
Judicial review proceedings are brought to challenge the officer’s determination.
In the course of those proceedings, the Minister’s barrister files written submissions in which it is essentially conceded that the Department officer misinterpreted the Regulation: the submissions state that Regulation 2.12JA does not have the purpose of deferring the date when a visa application is made until the date when the BPAY funds transfer is “matched” with the application.
In other words, the barrister essentially admits that the delegate was in error to determine that the visa application was not made until after the previous Subclass 186 visas had expired.
And yet he declines to inform the Court that the officer’s determination that the visa applications were invalid was affected by error, and should be remitted back to the Department for re-determination.
So to repeat, a visa application is made before the expiry of a previous substantive visa, and the visa application charges are fully paid, and yet the Department determines that the applications are invalid, and then, after their legal representatives determines that the approach taken by the Department is predicated on a misinterpretation of a regulation, nonetheless defends it in Court and refuses to admit error.
You read that right.
Read it and weep.
And “tough luck” for the applicants.
Is this really the way that Australia’s immigration system is meant to work?
I don’t think so.
What about you?
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Comments
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Wednesday, 19 June 2019
We are awaiting a decision from the FCC.
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Tuesday, 18 June 2019Has the Court proceeded over this case to-date? Interested in the outcome.
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Tuesday, 18 June 2019
For the first part, the agent appears at fault. There are clear warnings on the immigration website there can be delays with processing of BPAY payments. With such a critical urgent matter, why would the agent then not warn the client of the risk of using BPAY ?
The department explicitly states:
Do not pay by BPAY if your visa will expire in the next 3 days -
Wednesday, 19 June 2019
The "warning" is irrelevant: the Migration Act contemplates that where payment of visa application charges is made in a form other than case, that the actual collection of payment for the visa application charge will occur after the visa application is lodged. There is no basis in Regulation 2.12JA for "deeming" to application to have been made on the date when the Department actually collects payment of the visa application charge.
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Wednesday, 19 June 2019
From my reading of the article, it sounds like the visa holders actually processed their application on their own and then went to see an agent.
Of course I could be wrong.
That being said, I suspect this may be older than the BPAY warning and again I could be wrong but the reason i suspect this is because if this has already gone to the Tribunal etc, then I would think this would have happened at least a year or 2 ago. -
Tuesday, 18 June 2019
I agree with you. Please tell me your clients won at Court?
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Tuesday, 18 June 2019
If the the decision is re-affirmed in the MRT or AAT, then take it up to the next court of appeals, be it the district or supreme court. A lax of judgement that is then opened up to more of the judicial system will help put some sense in the case.
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Wednesday, 19 June 2019
We will keep you informed about what happens here.
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Friday, 01 November 2019
Hard to believe the pettiness of the Dept delegate. Michael keep us informed. Please
Immigration blog
So what happened next?